Gameday Theory

Fans who lost their seats at this year's Super Bowl have three compensation opportunities. Which one should they accept?

On Sunday, 1,260 Super Bowl ticket holders got screwed. The unlucky group lost their seats when Arlington, Texas, fire officials declared that a section of temporary bleachers was unsafe for posteriors. While the NFL moved 860 or so of the displaced fans to the nosebleeds, around 400 were forced to watch the game from the standing-room only section or on monitors inside and outside Cowboys Stadium. These people were not happy.

As news of the displacements came out, the NFL worked furiously to turn those frowns upside down. The league offered the 400 displaced fans $2,400 (three times the face value of a ticket) and a seat at next year's game, which they could use themselves or sell on the secondary market. (The 860 who were moved to the stadium's upper reaches were offered nothing at the time.) On Tuesday, the NFL added a second option: Disgruntled fans could accept a nontransferable ticket to any future Super Bowl, plus accommodations and airfare, but not including the $2,400. Fans can wait until after each year's conference championships to make a decision about which option they want, allowing them the possibility to see their preferred team in an upcoming Super Bowl. By Wednesday, a third option had been reported in the press: Fans could join a class-action lawsuit, filed in a Dallas district court, against the NFL, the Dallas Cowboys, and Cowboys owner Jerry Jones. (Late on Wednesday, a second lawsuit was filed on behalf of two Packers fans.)

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On Thursday, the NFL issued its strongest mea culpa yet, acknowledging that it had also wronged the 860 displaced nosebleed fans, in addition to 1,140 previously unidentified fans who had been seated in their rightful places, but were delayed in entering the game because of the construction snafu. All of these fans were offered their choice of a face-value ticket refund or a ticket to any upcoming Super Bowl.

So what should these three categories of fans—completely screwed over, rightfully aggrieved, and slightly inconvenienced—do? Is it best to join one of the lawsuits or take one of the NFL's offers?

The first lawsuit alleges that the NFL's offerings are not sufficient to cover the losses of those who paid for airfare and accommodations and bought pricy tickets on the secondary market. That claim seems legitimate. Rooms at a Super 8 Motel near the stadium on Super Bowl Sunday were going for $700. Round-trip tickets from Milwaukee to Dallas were selling for $845, while roundtrips from Pittsburgh to Dallas went for $821. Michael Avenatti, the attorney representing the aggrieved fans, also pointed me to a press release from Ticketmaster issued on the Wednesday before the game. The release reported that the cheapest seats on NFL Exchange, "the official ticket resale marketplace of the NFL," were being sold for $2,907, while the average ticket resale cost was $4,118.87.

We can conservatively estimate, then, that a displaced Steelers fan paid at minimum—one-night hotel stay, cheapest ticket—around $4,000 not to see his team lose on Sunday. That's $800 more than the cost of an $800 ticket to next year's game plus $2,400 in compensation. "When the NFL made the offer of $2,400, they knew it wouldn't compensate most of these ticketholders, from its own data," Avenatti says. In the case of the second option, we don't yet know what type of tickets, what type of airfare, and what type of accommodations the NFL is offering, so it's impossible to game out the value. (I left a message with the office of NFL public relations representative Greg Aiello, but it was not returned.) Finally, the suit alleges that the stadium officials knew that the seats might not be ready in time but decided not to inform fans until they got to the stadium, a claim that is supported by this news account and one that is crucial in tort law.

So, the smart money is in joining the lawsuit and rebuffing all of the NFL's offers, right?

Not so fast.

"The best money is on the NFL's deal probably," says SCOTUSblog's Tom Goldstein, who has argued and won a class-action case before the Supreme Court. "The NFL is already offering them more than they're going to get in a court case." The NFL is compensating these individuals the cost of the ticket, Goldstein says, and going the extra mile in offering them one to any Super Bowl of their choosing. The only way to win a class-action suit, Goldstein believes, is to prove that the NFL knew about the seating problems beforehand and that the league could have contacted ticketholders before they arrived at the stadium, a case that seems very hard to make.

Regardless, Goldstein believes the case won't go to trial and will ultimately result in a settlement for not much more than what the NFL is already offering. A fast settlement appears to be the plaintiffs' best hope. Late Thursday night, Avenatti's office e-mailed me a press statement reiterating his clients' legal case and responding to the NFL's latest offer: "I invite the NFL and Jerry Jones to contact me as soon as possible so that we may quickly resolve this dispute on terms fair to the fans." Goldstein also predicts the league, in an effort to avoid any further PR damage, will offer whatever settlement results from the class action to anyone who accepts one of the initial deals.

So, what should the Furious 400, the displaced nosebleed fans, and the mildly inconvenienced latecomers do? After careful consideration, I believe the answer depends on whether they fall into one of four sub-categories.

Group 1: Nosebleed fans and Cowboys haters: If you're one of the 860 people who got shipped to the upper deck after being promised "the best sightlines in the stadium," then you should probably join a lawsuit. Same goes for anyone who paid a small fortune for prime tickets on the secondary market only to get the worst seats in the house. If you sue, there is some chance you could get a settlement for more than a face-value refund or a ticket to a future Super Bowl. Plus, Avenatti told me that he wasn't accepting fees from his clients and would not take fees out of the settlement, so joining that suit is pretty much a free ride. In addition to the nosebleed fans, people who detest Jerry Jones—Redskins lovers, rival oil men—might also want to consider joining the lawsuits. You won't get immediate dividends, but you will have the pleasure of sticking it to the man.

Group 2: Gold-diggers and poorer superfans: If you value money over once-in-a-lifetime Super Bowl memories, than you should accept the $2,400 and the ticket to next year's game, pocket the cash, and sell the Super Bowl seat. In the case of the mildly inconvenienced fans, accept the refund unless the future ticket is transferable, in which case take the future ticket and sell it on the secondary market. This fairly obvious logic was confirmed to me in an e-mail from W. Bentley MacLeod , a Columbia Law School professor of economics: "This is pretty simple. Option one is pure money."

Group 3: Wealthier superfans and die-hard Packers and Steelers followers: If you are a Green Bay or Pittsburgh fan, then this game was more important to you than money. If your lifelong dream is to see your favorite team in the Super Bowl, then you should clearly take the second option: a ticket to the Super Bowl of your choice. This strategy also applies to superfans of any other team, except for the Browns.

Group 4: Unaffiliated NFL superfans and Cleveland Browns fans: This category includes compulsive gamblers, fans who bought tickets as status symbols, and general-interest football fans who have no allegiance to any one team. Browns fans are also in this group because no Cleveland team has ever made the Super Bowl, and the big game does not appear to be a possibility for the Browns in the near future. (The Lions have also never been to a Super Bowl, but I wouldn't put them in this group for at least tworeasons.)

In this case, the best option is to wait for whichever Super Bowl looks like it's going to be the most exciting game. The only difference between this group and Group 3 is that the latter could potentially wait for years to see their beloved team. Group 4 can go to the game on an impulse whenever the matchup is enticing, or the next time the Super Bowl is in New Orleans or Miami.

Which option would you pick—the money and the ticket to next year's game, or a free pass to any future Super Bowl and accommodations? Leave your comments below or e-mail jeremystahl1@gmail.com.